These days, tales of employees embarrassing their employers with ill-advised social media antics are everywhere!
- A KFC employee posted a picture of herself on Facebook licking a plateful of mashed potatoes. The picture, of course, went viral, causing the company to fire her.
- Here in the Pacific Northwest, the land of lattes, you may have heard the story of the “Bitter Barista.” He was a barista who maintained a blog in which he mocked and complained about his customers, saying such things as “I would remember your usual drink if you were a more memorable person,” and, “If you remind me four times that you’ve ordered decaf, guess what you won’t be getting.” When he was outed for his anonymous blog, his employer fired him.
- There’s the story of the New Jersey first grade teacher terminated from her job for her Facebook posts about her young students. Among other things, she wrote, “I’m not a teacher – I’m a warden for future criminals!”
- Recently, an Applebee’s employee posted a customer’s receipt online after the customer stiffed her server for a tip and wrote something rude on the receipt. Applebee’s fired the employee for publicly embarrassing the patron, and for violating the company’s social media policy, which requires staff to respect customer privacy.
No doubt about it, social media continues to be an area of confusion and concern for employers! When do employers have the right to question employees’ online activities, when are those activities protected speech, and when are they free speech?
Protected concerted activity & social media:
In our last discussion of this in February 2012, we focused on protected concerted activity in social media, when employees discuss their employers online.
But were the examples above protected concerted activity? Probably not. Protected concerted activity relates to employees working together to try to improve their pay and working conditions, or to fix job-related problems. The examples cited above are an entirely different kind of issue!
Can you require employees to let you track their social media activities?
How do you know what your employees are saying about you or your business online? Can you require them to friend you on Facebook? Can you require them to provide you with their social media passwords, so you can periodically peek at their posts?
You can do that as of today, but if Senate Bill 5211 passes in Olympia this session, it will prevent Washington employers in the future from requiring social media passwords from employees or prospective employees as a condition of employment.
However, it will not prevent employers from using information from social media sites that is in “the public domain.” What might “in the public domain” mean? All you have to do is watch the news each morning to see the videos, pictures or posts that have gone viral overnight.
The KFC employee who posted the Facebook picture of herself licking the potatoes thought only her friends would see it. But once friends share with friends, and so on, the private becomes public, and the damage is uncontrollable. In today’s social media world, the line between private and public speech is murky at best.
You must protect your business with a social media policy:
You have to protect your business with a social media policy for your employees to follow. However, the NLRB has been very particular about what is acceptable wording in these policies.
In May 2012, they issued a new 24-page Operations Management Memo providing detailed criticism of six corporate social media policies. What is probably most helpful for us in this memo, though, is the seventh policy, which they approved.
Lessons to be learned from the approved policy include:
- Do not include rules that are ambiguous in their application. Clarify how the rules will be applied to ensure they won’t restrict employees’ lawful rights
- Give specific examples of how rules apply. For example, state that the employer prohibits posts that include harassment or threats of violence
- If you instruct employees to be courteous and respectful, clarify the purpose of this. For example, that it is to prevent bullying, a hostile work environment, or harassment.
- Rules regarding maintaining trade secrets and company confidential information should be clarified as to what information is included. It cannot include information related to working conditions
You can visit the NLRB’s website to view the report and the attached approved social media policy to use it as a prototype for your own. And for good measure, you should run your policy past your attorney to ensure it is in compliance.
Social media is still a relatively wild and woolly place, especially in regard to its impact on employment issues. Undoubtedly, in the coming years, court cases will help to clarify what rights employers and employees have in the world of the internet, where one poorly thought-out decision can play out in front of a vast audience.
In the meantime, your best bet is to ensure that your company has a solid social media policy in place!